We are in the midst of a litigation crisis! The high cost and long delays associated with court matters often make litigation not only an awkward, but and impractical method of resolving disputes. Mediation is a form of alternative dispute resolution. It is an informal process in which opposing parties may negotiate a voluntary resolution of their dispute with the help of a neutral person called a “mediator.” The decision to mediate is completely voluntary.
How does it work?
Each party describes the dispute from his or her own point of view and offers possible solutions. The mediator helps the parties to focus on the real issues causing the problem, and then helps them to find a workable solution. When the parties arrive at an agreement, the agreement is put in writing.
How do I begin the process?
Contact us to schedule an intake meeting. If you have a lawyer, ask him or her about mediating your case. If the other party also agrees to try mediation, either your lawyer or you should schedule an intake.
Are there cases that should not be mediated?
While many problems can be resolved in mediation, you can discuss with your attorney or a mediator whether or not the issues in your case can be mediated. Cases involving on-going domestic violence should almost never be mediated.
How does the mediator help the couple emotionally?
If one party is a stronger negotiator, mediation helps balance the power. When couples express hurt, fear or anger, mediators talk about the needs behind the feelings. They reframe the issue to help the couple focus on a mutually acceptable solution. Mediation supports the healing process; helps you focus on your future; eliminates aggressive bargaining and legal games; prioritizes the well-being of the children; addresses the parties’ needs and interests not just their positions gives you a voice in the process.
√ It works. A good deal of mediations end in agreement as the parties are motivated to find resolution.
√ It’s affordable. Parties generally agree to split the cost of a mediator. Cases mediated early may avoid costly litigation.
√ It’s quick. If conducted early, mediation may result in settlement far quicker than waiting until near trial to settle.
√ It’s private. Almost everything disclosed during mediation is confidential and cannot be used in a lawsuit.
√ It’s impartial. Mediators have no stake in the outcome. Their role is to facilitate the resolution of the complaint.
√ It’s cooperative, not adversarial. Mediation provides a comfortable, safe and respectful setting for discussion. It is no where as combative as court cases can become.
The Difference Between Closed and Open Mediation
Closed mediation is usually “without prejudice” and “confidential”. Without prejudice means that everything said during the mediation, subject to certain limited exceptions, is legally considered a “without prejudice settlement discussion”. Neither party nor the mediator may give evidence in a legal proceeding about what was said during mediation; only the terms of any final and binding settlement may be disclosed.
Parties in closed mediation usually agree, as well, that their negotiations will be confidential, meaning neither of them, nor the mediator, will talk to third parties about what happened in mediation. Such confidentiality provisions usually allow the parties to discuss the mediation with anyone whose advice is required, such as their lawyers or accountants.
Most parties prefer closed mediation because they feel freer to express views and concerns and discuss options without the fear that what they say will end up being used against them somehow. Many parties also feel that entering into a closed mediation agreement helps build trust between them.
Open mediation is generally neither without prejudice nor confidential. In open mediation it is understood that either party or the mediator may give evidence in a legal proceeding about what happened during the mediation, including evidence about what offers were made.
Some parties prefer open mediation, particularly if they doubt the good faith of the other person. By agreeing to open mediation, parties can demonstrate to the other that they are willing to do what the other needs, in terms of process, to try to reach resolution.
Because of the distinct differences between open and closed mediation, and because of the different definitions of open mediation, it is critical that parties considering mediation first enter into a mediation agreement with each other and the mediator, so that everyone understands the ground rules.
Mediation arbitration or “Med-Arb,” is becoming an increasingly popular alternative dispute resolution mechanism in which the disputing parties and a third-party neutral attempt to reach a voluntary agreement through mediation, and then move to arbitration by the same third party if they are unsuccessful. This can be done on a point-by-point (one issue at a time) basis.
Therefore, the parties, may, for example tackle a particular issue and hopefully after their respective submissions, come to an agreement on that particular issue. If there is no consensus, the mediator then becomes an arbitrator and makes the final decision on that particular point. In effect, the med-arbiter moves back and forth between mediation and arbitration.
The primary goal of mediation is to assist the conflicting parties in negotiating their own dispute and in working towards a mutually satisfactory settlement. The third-party mediator acts as a facilitator with no authority to make decisions on any of the issues that arise during the mediation.
In arbitration on the other hand, the arbitrator is expected to render a final and binding decision based on the evidence presented and the parties’ respective submissions.
The good thing about med-arb is the parties are still very much involved in putting forth their positions. If consensus cannot be met, the arbiter then makes that decision on that point in dispute. In the end… there will be an Award and no court.
Arbitration is a legal technique for the resolution of disputes outside the courts, wherein the parties to a dispute refer it to one or more persons (the “arbitrators”, “arbiters” or “arbitral tribunal”), by whose decision (the “award”) they agree to be bound. Arbitration is a form of binding dispute resolution, equivalent to litigation in the courts and entirely distinct from the various forms of non-binding dispute resolution, such as mediation and the collaborative practice.
At We Mediate, we have adopted collaborative family law as a new approach in managing the separation process, in a dignified manner. In the collaborative practice, the family law lawyers and their clients agree in writing to reach settlement without court involvement.
They agree to work together to resolve children and financial issues arising out of the separation. In addition, they may enlist other experts, such as child specialists, as part of the team. Utilizing their skills in client representation, negotiation and problem-solving, collaborative family law lawyers help their clients shape a fair agreement. Relationship breakdown will always involve financial and emotional costs. The benefits of collaborative family law help minimize those costs for all concerned.
Rather than focusing on going to court, collaborative lawyers help their clients to focus on solutions to the issues arising out of their separation. The parties and lawyers meet together, freely exchanging financial information and any other information that will be relevant to the resolution of the issues. If expert advice is needed from other professionals, the parties agree to use the same expert and agree to share the costs. The lawyers are committed to working “collaboratively” to help the parties arrive at a settlement. In fact, if the matter does not settle, the parties will have to retain new lawyers to go to court. So, rather than a “lose-lose” situation, despite the turmoil of separation, it can be “win-win” for both parties, including the children.
Parenting Coordination (PC) is an alternative dispute resolution service to assist parents in devising a parenting plan for their children and assisting to implement parents’ previously agreed to or court ordered parenting plan.
A Parenting Coordinator has experience with and knowledge of separation/divorce, high conflict families, child development, parenting time schedules, family systems, family violence, conflict resolution, arbitration and relevant legislation and family law rules.
A Parenting Coordinator has many roles, but, first and foremost, he or she will assist parents in implementing their parenting plan or, if they do not have one, help them create one. The Parenting Coordinator facilitates conflict resolution, provides education in parenting skills, communication skills, the adverse effects of stress and conflict on children and holds the parents accountable for their actions.
If there is a dispute and the parents cannot come to a mutual agreement, either on their own or with the assistance of the Parenting Coordinator, the Parenting Coordinator can make final and binding decisions (arbitrates) in keeping with the children’s best interests for matters that are not designated otherwise in the parties’ parenting plan.
Parenting Coordinators typically address day-to-day parenting issues rather than purely legal ones. They may sometimes monitor written exchanges of parent communications and suggest more productive forms of communication that limit conflict. They may assist with implementing minor changes in, or clarification of, parenting time schedules or conditions. They may address visitation exchanges, health care, education, discipline, extracurricular activities and payments for such activities and religious observances and education. The goal is to help parents learn how to communicate more effectively and thus avoid conflicts that cause them to return to court.
What is involved in the referral and intake process?
The Parenting Coordinator accepts referrals after obtaining preliminary information from the parents and/or lawyers, if they are also involved. A review of the current parenting plan, Court Order and custody/access assessment report, if available, is required. If lawyers are involved, a brief conference call is advised to review the situation, mandate and Agreement. The parents must review the Agreement with their lawyers and provide a certificate of independent legal advice (ILA) along with signing of a Parenting Coordination Agreement.
If you already have a Court Order or Separation Agreement which makes provision for mediation, arbitration or PC, and issues arise regarding your parenting plan, PC may very well be the route you follow. In this case, it is known as “secondary arbitration.” Secondary Arbitration is defined in the Family Law Act as a family arbitration that arises from a separation agreement, arbitral award or court order. Generally it deals with implementing or addressing issues arising from an earlier document, though its scope may be narrow or broad. Clarifying or adapting arrangements for children as circumstances change – education, access, vacations, etc – often fall into this category.
However, unlike other family arbitrations, secondary arbitrations may be agreed on before a dispute arises, the parties do not need to have independent legal advice before beginning the arbitration, and the documents need not be in writing. This is because the parties are presumed to have had these protections already, in the context of the proceeding or agreement that gave rise to the secondary arbitration. The parties to a secondary arbitration must be screened for domestic violence and power imbalances before the arbitration, though there may be a mediation phase before the arbitration, and the screening may occur before the mediation as well.
Parents attend either together or separately for an information meeting with the Parenting Coordinator during which the Parenting Coordination Retainer Agreement and process is reviewed and questions are answered. A retainer is accepted in advance for this preliminary work. Parents must consent to participating in Parenting Coordination as well as to the specific Parenting Coordinator.
|Have Questions?||Please call 905.272.2540 or email us for more information.|
|We Mediate is a division of Klein Law, a family law boutique that has been offering clients in the Greater Toronto Area effective, innovative and alternate approaches for their family law needs since 1984.
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